The U.S. Environmental Protection Agency (EPA) recently developed a draft rule that would clarify the jurisdiction of the Clean Water Act (CWA) over streams and wetlands connected to downstream waters.
The agency has said that its main goal is to provide increased certainty for stakeholders in various sectors that are covered by the CWA, although it has also expressed interest in improving collaboration with the Army Corps of Engineers and the Department of Agriculture’s conservation programs.
Rulemaking process driven by draft science report
The EPA has prepared a draft report that it says will “provide the scientific basis needed to clarify CWA jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.” In “Connectivity of Streams and Wetlands to Downstream Waters” the EPA conducted a broad review of previous research on the subject and drew three main conclusions.
The agency’s central point is that even the smallest streams can have acute effects on downstream waters, as they supply rivers with most of the water that reaches them and transport various types of sediment and organic matter between ecosystems. Beyond this, the EPA asserted that wetlands and open waters in floodplains are integral parts of the streams and rivers with which they connect, as conditions in these areas affect the flow of water, the spread of pollutants and the exchange of biological species between habitats.
With regard to how wetlands and open waters located outside of floodplains interact with downstream waters, the EPA concluded that the available information is not sufficient to make generalizations.
The EPA’s report will be reviewed by the Science Advisory Board (SAB) at a meeting scheduled for December 16 to 18. Input from the public will be considered by the SAB at that time, although comments must be received by November 6 to guarantee that they can be provided to the board in advance of the meeting.
According to the EPA, any regulatory action taken on this matter “will be based on the final version of this scientific assessment,” which will reflect the agency’s consideration of public comments and the SAB’s review.
Proposed rule would maintain current exemptions and exclusions
The EPA has stated that the scope of its proposed rule “is limited to clarifying current uncertainty concerning the jurisdiction of the Clean Water Act that has arisen as an outgrowth of recent Supreme Court decisions.” According to the agency, it is not proposing any changes to current exemptions and exclusions from permitting and regulatory compliance under the CWA.
Permitting exemptions would be maintained for:
- Stormwater discharges at agricultural facilities
- Return flows from irrigated agricultural tracts
- Irrigation ditches and farm or stock ponds
- Maintenance of drainage ditches
- Farm, forest and temporary mining roads.
Proposed exclusions from CWA jurisdiction would include:
- Prior converted cropland
- Waste treatment systems
- Non-tidal drainage and irrigation ditches on dry land
- Artificially irrigated areas that would otherwise be dry
- Artificially flooded areas used for rice production
- Artificial lakes or ponds used for activities such as irrigation or stock watering
- Artificial waters created primarily for aesthetic purposes
- Depressions created as a result of construction activity that fill with water
- Upland pits excavated for sand or gravel that fill with water.
The EPA’s proposed rule regarding CWA jurisdiction over wetlands and streams was sent to the White House Office of Management and Budget for review on September 17. Given the ongoing government shutdown, it is unclear when the agency’s proposal will be finalized.
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